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VOLUME 7 - CHAPTER 77
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77.14 Terrorist Threats
77.14.3 Terrorist Threats: Defenses And Defense Theories
77.14.3.1 Terrorist Threat: Defense Theory Of No Intent To Place Victim In Fear Of Serious Bodily Injury
77.14.3.2 Terrorist Threats: Defense Theory That Jury Must Unanimously Agree Upon At Least One Threat As Basis For Conviction
77.14.3.3 Terrorist Threats: First Amendment Defense
77.14.3.4 Terrorist Threats: Additional Defenses And Defense Theories
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77.14.3.1 Terrorist Threat: Defense Theory Of No Intent To Place Victim In Fear Of Serious Bodily Injury
RATIONALE: Without special instruction the jury may not understand that an intent to place the victim in fear of serious bodily harm is an element of a terrorist threat charge.
POINTS AND AUTHORITIES: See Robinson v. U.S. (DC 1986) 506 A2d 572, 575 [in order to commit offense of terroristic threat, accused must have specific intent to place any person in fear of imminent serious bodily injury]; State v. Creech (MO 1998) 983 SW2d 169, 171 [crime of harassment requires a specific intent on the defendant's part to frighten or disturb another]; Cook v. State (TX 1997) 940 SW2d 344, 347 [person makes "terroristic threat" if he threatens to commit any offense involving violence to any person with intent to place any person in fear of imminent serious bodily injury]; Dues v. State (TX 1982) 634 SW2d 304, 305 [in order to commit offense of terroristic threat, accused must have specific intent to place any person in fear of imminent serious bodily injury].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.14.1.2 [Terrorist Threats: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
A "credible threat" means a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear that [he] [she] will be subjected to serious bodily injury.
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77.14.3.2 Terrorist Threats: Defense Theory That Jury Must Unanimously Agree Upon At Least One Threat As Basis For Conviction
PRACTICE NOTE: When there is evidence of more than one threat that could provide the basis for a terrorist threat conviction, the jury should be required to unanimously agree upon at least one specific threat.
For example, People v. Melhado (CA 1998) 60 CA4th 1529 [70 CR2d 878] reversed a conviction for terrorist threats where the evidence presented multiple threats and the prosecutor’s election as to a specific threat was never communicated to the jury. The error was reversible because any of the threats could have been a violation of the statute and it could not be determined beyond a reasonable doubt that each juror agreed on a particular threat as the basis for the verdict.
RESEARCH NOTES:
See generally, FORECITE National™ 305.10.4 [Jury Unanimity].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.14.1.2 [Terrorist Threats: Federal Circuit Model Instructions And Notes].
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VOLUME 7 - CHAPTER 77
77.14.3.3 Terrorist Threats: First Amendment Defense
See FORECITE National™ 300.16 [First Amendment].
See FORECITE National™ 258.1 [First Amendment Defense: Specification Of Prosecution's Burden].
See FORECITE National™ 99.3.3 [Resisting Arrest: Defense Theory That Verbal Statements Are Not Sufficient].
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77.14.3.4 Terrorist Threats: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)